On June 9, the U.S. District Court for the District of South Carolina granted summary judgment in favor of a national bank, ruling that the dialing equipment used by the bank did not fit within the U.S. Supreme Court’s narrowed definition of the type of equipment that qualifies as an autodialer under the TCPA. As previously covered by a Buckley Special Alert, the Supreme Court held that in order to qualify as an “automatic telephone dialing system,” a device must have the capacity either to store or produce a telephone number using a random or sequential generator. The TCPA defines an autodialer as equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers. The question before the Supreme Court in Facebook Inc. v. Duguid was whether that definition encompasses equipment that can “store” and dial telephone numbers, even if the device does not use “a random or sequential number generator.” The Court held it does not, stating that the modifier “using a random or sequential number generator” applied to both terms “store” and “produce.”

In the South Carolina case, the plaintiff argued that the bank used an autodialer when it placed at least 155 debt collection calls without her consent. She sued the bank, alleging, among other things, violations of the TCPA, FCRA, and invasion of privacy. The court ruled in favor of the bank on the FCRA and invasion of privacy claims and directed the parties to refile their motions after the Supreme Court issued its decision in Facebook. Following the Facebook opinion, the plaintiff argued that “the dialer at issue must only have the capacity to store or produce numbers using a random or sequential number generator, and Defendant’s internal documents establish that the [bank’s dialing equipment] has that capacity,” and that, moreover, a footnote in Facebook “leaves open the possibility that the [equipment’s] ability to use a random number generator to determine the order in which numbers are dialed from a preproduced list may qualify it as an ATDS.”

The court disagreed, concluding that even though internal bank documents referred to the dialing equipment as an autodialer and showed that the equipment dialed numbers automatically without the assistance of an agent, the information was insufficient to meet the Supreme Court’s statutory definition. “As we learned from Duguid, the automatic dialing capability alone is not enough to qualify a system as an ATDS,” the court ruled. “The system at issue must store numbers using a random or sequential number generator or produce numbers using a random or sequential number generator to qualify as an ATDS.” According to the court, the bank’s equipment dialed members’ numbers from a pre-created list of targeted accounts. With respect to the plaintiff’s footnote argument, the court found that the plaintiff was taking the footnote in Facebook “out of context.”